Chief Ajibowu A. Owoade V. Federal Republic Of Nigeria (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling)

This is an application brought by way of motion on notice dated 23rd of January, 2012 and filed on the same day praying this court for an Order quashing the conviction and sentence of the Appellant/Applicant as handed down on the 8th and 9th days of July, 1998 respectively by the Enugu Zone of the now defunct Failed Banks Tribunal in Charge No. FBT/EZ/03C/96: Federal Republic of Nigeria vs. Chief Ajibowu A. Owoade & 2 others.

The grounds for bringing the application are as follows:

(a) By virtue of the provisions of Order 4 Rules 8 and 10 of the Federal Court of Appeal Rules, 1981 [being the then applicable Rules of Court], it is the duty of the Registrar of the Court below, in this instance, the Failed Banks Tribunal, Enugu Zone, to prepare and forward to the appellate Court, in this instant, the Court of Appeal, the Record of Appeal relating to the criminal appeal of the Appellant/Applicant as evidenced by Notices of Appeal dated the 27th day of July, 1998 and 2nd December, 1998.

(b) The Registrar of the Failed Banks Tribunal, sitting at Enugu, did perform this duty as contemplated under the provisions of Order 4 Rules 8 and 10 of the Federal Court of Appeal Rules, 1981, by transmitting and/or delivering to the registry of the now defunct Special Appeals Tribunal, then sitting at Lagos, 3 volumes of the Record of Appeal compiled by him and in respect of the Appellant/Applicant’s appeal, and the over 400 Exhibits tendered at the trial of the Appellant/Applicant before the Enugu Zone of the Failed Banks Tribunal and on which the Tribunal relied in convicting and sentencing the Appellant/Applicant.

(c) Upon the dissolution of both the Failed Banks Tribunal and the Special Appeals Tribunal in 1998 by the then Federal Military Government of Nigeria, the Record of Appeal together with the Exhibits referred to in sub-paragraph (b) above were delivered to the registry of the Calabar Division of the Court of Appeal by the registry of the now defunct Special Appeals Tribunal

(d) By letter dated the 4th day of October, 2002, the Registry of the Calabar Division of the Court of Appeal delivered the following processes/documents to the registry of the Lagos Division of the Court of Appeal namely:-

“1. Original Case File Folios 1-132

2. Notice of Appeal-11 copies
3. Record of Appeal Vol. One to Three-21 copies each
4. Exhibits Serials Nos. OP 1-104 & OD 1-71

(e) The documents/processes referred to in sub-paragraph (d) above were received at the registry of this Honourable Court by G. Ogundipe on the 4th day of October, 2002.

(f) By letter dated the 23rd November, 2011, the registry of this Honourable Court informed the Appellant’s Counsel, Messrs. Aluko & Oyebode, that the aforementioned Exhibits could not be located despite considerable efforts by the registry of this Honourable Court.

(g) By reason of the contents of grounds (a)-(f) above, the Appellant/Applicant’s ability to properly and diligently prosecute his appeal before both this Honourable Court and the Court of Appeal has been greatly impaired, thereby violating his constitutional right to fair hearing and his right to be given every reasonable opportunity to prosecute his appeal.

The Appellant/Applicant filed an affidavit in support and Affidavit in support No. 2 both dated the same day, the 23rd of January, 2012 in support of the application. The Respondent, in response filed a counter affidavit dated the 28th of June, 2012.

The Appellant’s/Applicant’s argument is that his conviction and sentence be quashed because there is no proper record on which his appeal can be heard. Counsel submitted that for a court to hear an appeal there must be proper records. Counsel argued that this court has jurisdiction to hear appeals from the now defunct Failed Banks Tribunal by virtue of Decree 62 of 1999 and Section 240 of the 1999 Constitution which is in pari materia with Section 220 of the 1979 Constitution. Counsel submitted that the Court of Appeal Rules make provisions on how records of appeal should be compiled. He submitted that these rules set out what the records must contain for an appeal to be heard. Counsel pointed out that Order 17 Rule 9 (f) states that all documentary exhibits must be in the record. Counsel argued that in this case, proper records cannot be compiled because the Exhibits relied upon by the defunct Failed Banks Tribunal to convict the Applicant are missing, which makes the prosecution of the Appellant’s appeal impossible. Counsel argued that the Appellant/Applicant’s constitutional right of appeal has been damaged permanently by this fact and the only option left for the court is to quash his conviction.

Counsel pointed out that the Applicant was convicted by the Tribunal by reference to the various Exhibits: Exhibits OP 1-104 and OD 1-71 which are now missing and that the appeal cannot properly be heard without a re-evaluation of the said missing exhibits. Counsel submitted that to refuse the application on the sole basis that the Applicant might be able to get the Exhibits eventually would be unjust. Counsel further submitted that where any provision of the law is capable of two interpretations, where one protects the liberty of a person, it is the liberal interpretation the court must accept particularly in criminal matters. He cited Haastrup W. A. Ltd. Vs. Welding Eng. (1996) 9 NWLR Pt. 470 Pg. 92 at Pg. 98-99; ABIODUN V. A. G. FEDERATION (2007) 15 NWLR Pt. 105 Pg. 359; Chief of Air Staff & Ors. V. Iyen (2005) 6 NWLR Pt. 922 Pg. 496 at 555; Ukpe V. Udon (1999) 6 NWLR Pt. 609 Pg. 293 at 300-301.